Aging Options

When you need a lawyer, hire the right lawyer

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In 2006, a Pennsylvania man, Dustin Sams, suffered a brain injury while riding when his motorcycle was struck by a car.

He won a settlement of $380,000 in his personal injury case against the insurance company of the driver.  He received a cash payment of $147,525.85 that was used to pay for attorney’s fees and other expenses and then he agreed to a structured settlement annuity for the remainder of the settlement, of $232,474.15.  That annuity was to pay out at $967.23 per month with an increase of 3 percent each year.  His mother was named as his primary beneficiary.  The annuity is not owned by Sams.  Prior to the settlement Sams received Supplemental Security Income (SSI) and Medicaid/Home and Community Based Service Long Term Care but with the settlement Sams became ineligible for both benefits and imposed a penalty period for the Medicaid portion of his benefits due to his having transferred an asset for less than fair market value because although Sams was never in actual possession of the money used to purchase the annuity, he had at all times access to the settlement.  The court further found that the settlement was not compliant with the requirements of the Deficit Reduction Act of 2005 because the payment did not make equal payments for its duration, deferred payment between 2008 and 2012 and did not name the state as the primary beneficiary.  Here is the case.

This is a situation of knowing what your lawyer knows.  Sams’ lawyer knew personal injury but he obviously didn’t know about government benefits and ultimately Sams’ case was about those benefits.  With home health care easily costing thousands of dollars a month, he lost out on benefits far exceeding any payout he’ll receive from the annuity.  This is one of the reasons elder law attorney Rajiv Nagaich tells people that estate planning attorneys are not the same as elder law attorneys.  It takes specific knowledge and experience about government benefits to protect those benefits and you’ll rarely find them with someone who doesn’t regularly handle matters focused on seniors.  Don’t leave your specialized elder care needs in the hands of someone who has only rudimentary knowledge at best about the types of issues facing seniors and their families and can’t see beyond the legal needs to recognize how housing, finances, and health relate to the law and their clients.  For a list of elder law attorney, please check out the AgingOptions Resource Guide.

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